Summary of District of Columbia Laws

The Law: The Act requires covered employers to regularly and promptly pay their employees the agreed upon wage. It mandates that employees provide wages at least twice each month on a regular schedule designated in advance, with some limited exceptions.

An employer shall pay all wages earned to his or her employees on regular paydays designated in advance by the employer and at least twice during each calendar month; except, that all bona fide administrative, executive, and professional employees (those employees employed in a bona fide administrative, executive, or professional capacity, as defined in section 7-999.1 of the District of Columbia Municipal Regulation (7 DCMR § 999.1)) shall be paid at least once per month; provided, however, that an interval of not more than 10 working days may elapse between the end of the pay period covered and the regular payday designated by the employer, except where a different period is specified in a collective agreement between an employer and a bona fide labor organization; provided further, that where, by contract or custom, an employer has paid wages at least once each calendar month, he may lawfully continue to do so. Wages shall be paid on designated paydays in lawful money of the United States, or checks on banks payable upon demand by the bank upon which drawn.

Pursuant to § 32-1303 of the law, unless otherwise specified in a CBA, when an employer discharges an employee, the employer must pay the employee's wages earned not later than the working day following discharge, unless the employee was responsible for money belonging to the employer. In the latter case, the employer has four days from the date of discharge or resignation to determine amount due and pay the employee all wages earned.

When an employee who does not have a written contract for employment for a period in excess of thirty days quits or resigns, the employer shall pay the wages due upon the next regular payday or within seven days from the date of quitting or resigning, whichever is earlier. Employer is liable for penalty of l0 percent of the unpaid wages for each working day the employer fails to timely pay the employee.

The Wage-Hour Office (a division of the D.C. Department of Employment Services) has the authority and duty to investigate complaints and may seek either civil or criminal enforcement. Individuals may also bring an action for enforcement and the Act provides for the payment of liquidated damages and attorney's fees.

Q & A

Question: Under DC law, are employees entitled to unused vacation days when the employee leaves their job?

Answer: It depends. If an employer provides paid vacation time as a form of compensation for a particular job, then, in the absence of an express agreement to the contrary, a terminated employee has the right to be paid for accrued paid leave.

First, the applicable provision of the DC Code is § 32-1303. This section mandates that an employer pay any wages owed. Wages are defined as monetary compensation owed by an employer (§ 32-1301(3)). There is no mention of vacation compensation in this section.

However, there are two applicable DC cases that define vacation time as wages under certain circumstances: Jones v. District Parking Managers, 268 A.2d 860 (D.C. App. 1970), and NRA v Ailes, 428 A.2d 816 (D.C. App. 1981). The controlling precedent comes from the Jones case. Here is the applicable paragraph:

"It is beyond dispute that an agreement to pay vacation pay to employees made to them before they performed their services, [*862] and based upon length of service and time worked, is not a gratuity but is a form of compensation for services, and when the services are rendered, the right to secure the promised compensation is vested as much as the right to receive wages or other form of compensation." Textile Workers Union v. Paris Fabric Mills, 18 N.J.Super. 421, 87 A.2d 458, 459, aff'd, 22 N.J.Super. 381, 92 A.2d 40 (1952). 3 … We hold, therefore, that HN2o to this Headnote in the case. in the absence of an agreement to the contrary 4 the fact that an employee was discharged for cause cannot operate to deprive him of earned vacation pay rights.

The applicable rule in D.C. is further summarized by the NRA case: “In summary, the rule of this jurisdiction is: (1) the right to accrue paid leave implies the right to compensation for unused leave upon discharge from employment, and (2) once a discharged employee has established the right to accrue leave and the amount of leave unused, the employee is entitled to compensation for it unless the employer sustains the burden of proving "an agreement to the contrary."

The first prong of the NRA test is met when an employer provides paid vacation time as part of the compensation for their employees.

Under the second prong of the test, an “agreement to the contrary,” that unused vacation time will not be paid to a terminated employee, can be shown in a number of different ways. For example, an “agreement to the contrary” can take the form of knowledge by the employee of an employer’s policy, a written policy by the employer explaining paid leave, or an explanation in the employee handbook.

Despite an “agreement to the contrary,” an employee may still have an argument under contract if the employer orally told the employee that unused vacation days would be credited, or by pattern and practice if the employer regularly credits unused vacation days in violation of their policy.

Question: What happens if an undocumented worker (UW) is found to have worked for the University? Should they be paid?

Answer: Yes, wage and hour law (FLSA and DC Wage and Hour Law) require payment. Several courts have held – and the Labor Department has issued definitive guidance – that employers must pay for work actually performed, even by UWs and even by UWs who were illegal at all times. In Galdames, et al. v. N & D Investment Corp., a 2009 federal case from Florida, the court ruled that UWs working in a laundry had to be paid under FLSA, notwithstanding their illegal status. Under similar facts a federal court in Missouri reached the same conclusion. In Lucas v Jerusalem Café, decided just last year, the court ruled that these UWs, who worked in a Kansas City restaurant, clearly had standing under the FLSA to receive back pay and OT, notwithstanding the fact that they were illegal at the time they were hired and throughout their employment (an attempt to pass off their status as “volunteer workers” also failed). The Secretary of Labor herself filed a brief in support of the UWs in this case, and her brief included this language: “The Department's longstanding position, articulated both before and after Hoffman Plastics v. NLRB, (U.S. Supreme Court, 2002), is that undocumented workers are entitled to minimum wages and overtime pay for hours worked under the FLSA. This position is grounded in the definitions of ‘employee’ and ‘employ’ under the Act, which contain no limitation based on immigration status, and in the fact that enforcing the FLSA on behalf of all workers regardless of immigration status is essential to achieving the purposes of the Act.”

In addition, published guidance from the Labor Department’s Wage and Hour Divisionincludes this language: “The Department's Wage and Hour Division will continue to enforce the FLSA without regard to whether an employee is documented or undocumented.”

Resources

Driscoll v. GWU, April 5, 2013. GW entitled to summary judgment on a former employee's claim under the D.C. Wage Payment and Collection Law (DCWPCL). The District of Columbia Minimum Wage Act (DCWMA) was the employee's exclusive state remedy for unpaid overtime wages. He could not also seek relief under the DCWPCL based on identical facts. 2013 WL 1352324

updated 10/30/12 mlo to add Q and A written by SZG on vacation pay, and Q & A on intersection of employment law and immigration law by MLO/LJM; also updated web link to Dept. of Employment Services